EXHIBIT 10.1
EXECUTION COPY
SECOND AMENDMENT
SECOND AMENDMENT, dated as of July 8, 2005 (this "Second
Amendment"), representing an amendment to the Amended and Restated Credit
Agreement, dated as of August 19, 2004 (as amended by the First Amendment and
Waiver dated as of December 16, 2004, the "Credit Agreement"), among
CHS/COMMUNITY HEALTH SYSTEMS, INC., a Delaware corporation (the "Borrower" or
"CHS"), COMMUNITY HEALTH SYSTEMS, INC., a Delaware corporation ("Parent"), the
several lenders from time to time parties thereto (the "Lenders"), WACHOVIA
BANK, NATIONAL ASSOCIATION, as syndication agent (in such capacity, the
"Syndication Agent"), BANK OF AMERICA, N.A., as documentation agent (in such
capacity, the "Documentation Agent") and JPMORGAN CHASE BANK, N.A. (f/k/a
JPMorgan Chase Bank), as administrative agent for the Lenders (in such capacity,
the "Administrative Agent").
W I T N E S S E T H :
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WHEREAS, the Borrower, Parent, the Syndication Agent, the
Documentation Agent, the Administrative Agent and the Lenders are parties to the
Credit Agreement;
WHEREAS, the Borrower and Parent have requested that the
Administrative Agent and the Required Lenders agree to amend certain provisions
of the Credit Agreement; and
WHEREAS, the Administrative Agent and the Lenders parties
hereto are willing to agree to the requested amendments, but only upon the terms
and conditions set forth herein;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
premises contained herein, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms which are defined in the Credit Agreement are used herein as defined
therein.
2. Amendment to Subsection 4.5(b). Subsection 4.5(b) of the
Credit Agreement is hereby amended by replacing the phrase "first anniversary"
with the phrase "second anniversary."
3. Amendments to Subsection 8.12(a). (a) Clause (ii)(x) of
Subsection 8.12(a) is hereby amended by inserting the phrase "Existing
Convertible Subordinated Debt," immediately before the phrase "Convertible
Subordinated Debt."
(b) The proviso to clause (iii) of Subsection 8.12(a) of the
Credit Agreement is hereby amended by (i) inserting "(x)" between the words
"with" and "the" in such proviso, (ii) inserting the phrase "under this clause
(x)" between the words "acquisitions" and "shall" in such proviso and (iii)
adding the following to the end of such proviso:
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"or (y) cash and Cash Equivalents then held by the Borrower or
the proceeds of borrowings of Revolving Credit Loans, so long as (I)
the aggregate amount of such cash, Cash Equivalents and proceeds are
used to prepay, redeem or acquire the Existing Convertible Subordinated
Debt or any Convertible Subordinated Debt or High Yield Subordinated
Debt issued in exchange for, or to extend, renew or refinance, a like
amount of Existing Convertible Subordinated Debt, (II) such prepayment,
redemption or acquisition is not prohibited under the terms of any High
Yield Subordinated Debt and (III) no Default or Event of Default has
occurred and is continuing."
4. Amendment to Subsection 8.12(b). Subsection 8.12(b) is
hereby amended by deleting such Subsection in its entirety and substituting, in
lieu thereof, the following:
"(b)(i) Make any payment in violation of any of the
subordination provisions of any Existing Convertible Subordinated Debt,
Convertible Subordinated Debt or High Yield Subordinated Debt; or (ii)
waive or otherwise relinquish any of its rights or causes of action
arising under or arising out of the terms of any Existing Convertible
Subordinated Debt, Convertible Subordinated Debt or High Yield
Subordinated Debt; or (iii) consent to any amendment, modification or
supplement to the terms of any Existing Convertible Subordinated Debt,
Convertible Subordinated Debt or High Yield Subordinated Debt except
with the consent of the Required Lenders, provided, that no such
consent shall be required so long as (A) no Default or Event of Default
shall have occurred and be continuing and (B) such amendment,
modification or supplement is not materially adverse to the Lenders (it
being understood that (x) any increase of the interest rate, shortening
of the tenor, addition of prepayment requirements, guarantees or
collateral, or change to the terms and provisions relating to
subordination, of any such Existing Convertible Subordinated Debt,
Convertible Subordinated Debt or High Yield Subordinated Debt shall be
deemed materially adverse to the Lenders and (y) any change therein
which would permit a prepayment, redemption, defeasance, discharge or
acquisition of the Existing Convertible Subordinated Debt (or any
Convertible Subordinated Debt or High Yield Subordinated Debt issued in
exchange for, or to extend, renew or refinance, such Existing
Convertible Subordinated Debt) permitted hereunder shall be deemed not
to be materially adverse to the Lenders); or (iv) make any optional
payment or prepayment on or redeem or otherwise acquire, purchase or
defease any Existing Convertible Subordinated Debt, Convertible
Subordinated Debt or High Yield Subordinated Debt, provided that Parent
may optionally prepay, redeem, discharge, defease or acquire any
Existing Convertible Subordinated Debt, Convertible Subordinated Debt
or High Yield Subordinated Debt (A) with the proceeds of (I) any and
all prepayments, redemptions and acquisitions of the Subordinated Note
or, as applicable, an Additional Subordinated Note by the Borrower
pursuant to clause (a)(iii) above, (II) issuances of any Convertible
Subordinated Debt or any High Yield Subordinated Debt or (III) any
public offering of shares of common stock of Parent net of any fees or
expenses (including underwriting commissions)
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incurred in connection with the issuance thereof, in each case to the
extent the Net Proceeds thereof are not required to be used to make a
prepayment required by subsection 4.6, (B) in exchange for shares of
common stock of Parent or (C) in exchange for any Convertible
Subordinated Debt or any High Yield Subordinated Debt."
5. Conditions to Effectiveness of this Second Amendment. This
Second Amendment shall become effective upon receipt by the Administrative Agent
of counterparts of this Second Amendment duly executed by each of the Borrower,
Parent and the Administrative Agent and consented to by the Required Lenders
(such date, the "Second Amendment Effective Date").
6. Representations and Warranties. On and as of the date
hereof and after giving effect to this Second Amendment, the Borrower hereby
confirms, reaffirms and restates the representations and warranties set forth in
Section 5 of the Credit Agreement mutatis mutandis, except to the extent that
such representations and warranties expressly relate to a specific earlier date
in which case the Borrower hereby confirms, reaffirms and restates such
representations and warranties as of such earlier date, provided that the
references to the Credit Agreement in such representations and warranties shall
be deemed to refer to the Credit Agreement as amended pursuant to this
Amendment.
7. Continuing Effect; No Other Amendments. Except as expressly
set forth in this Second Amendment, all of the terms and provisions of the
Credit Agreement are and shall remain in full force and effect and the Borrower
shall continue to be bound by all of such terms and provisions. The amendments
provided for herein are limited to the specific subsections of the Credit
Agreement specified herein and shall not constitute an amendment of, or an
indication of the Administrative Agent's or the Lenders' willingness to amend or
waive, any other provisions of the Credit Agreement or the same subsections for
any other date or purpose.
8. Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the preparation and delivery of this Second Amendment,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
9. Counterparts. This Second Amendment may be executed by one
or more of the parties to this Second Amendment on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Second Amendment signed by the parties hereto shall be delivered
to the Borrower and the Administrative Agent. The execution and delivery of this
Second Amendment by any Lender shall be binding upon each of its successors and
assigns (including transferees of its Commitments and Loans in whole or in part
prior to effectiveness hereof) and binding in respect of all of its Commitments
and Loans, including any acquired subsequent to its execution and delivery
hereof and prior to the effectiveness hereof.
10. GOVERNING LAW. THIS SECOND AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS SECOND AMENDMENT
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SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
CHS/COMMUNITY HEALTH SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Treasuer
COMMUNITY HEALTH SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Treasuer
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇
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Name: ▇▇▇▇ ▇▇▇ ▇▇▇
Title: Vice President
[Signatures of lenders omitted]